1.The Application is premised on the Preliminary Objection dated 13th October 2016. The Preliminary Objection is raised on the grounds that the suit is fatally defective, as the same is statute barred by virtue of Section 4(1) of the Limitation of Action Act Chapter 22 law of Kenya. Section 4(1) of the Limitation of Actions Act states that:
2.The facts of the case are that on 14th October 2009, the Plaintiff entered into a sale agreement with the Defendant for purchase of land at a consideration of Kenya Shillings One Million Five Hundred Thousand shillings only (Kshs. 1,500,000/-). Following the refusal of the Defendant to execute the required documents and finalize the transfer process, the Plaintiff vide a Plaint dated 22nd August 2016 sought for an order of Specific Performance based on the sale agreement dated, for the Defendant to transfer all parcel of land known as Land Reference Number 9084-Nairobi.
3.The Defendant submitted that the cause of action arose on 14th October 2009 and was enforceable until 14th October 2015. Furthermore, it was submitted that the Plaintiff pleaded that the cause of action arose on 14th October 2009 in essence giving life to Section 4(1) of Limitation of Action Act. Thus, the question of when the cause action arose is pleaded, and not to be ascertained.
4.In submissions dated 15th August 2022, the Plaintiff submitted that the cause of action accrued after issuance of the Completion Notice dated 20th January 2016 and not upon the lapse of the 90 day period as stated by the Defendant.
5.Having perused the written submissions, it is evident that the issues for determination before this Court are;i.Whether the threshold to raise a Preliminary Objection has been met?ii.Whether the Preliminary Objection is merited?
6.It is trite law that a Preliminary Objection must be raised on a point of law as reiterated in the case of Mukisa Biscuits Manufacturing Co. Ltd V. West-End Distributors Limited (1969). E.A 696. Having raised the objection on a specific provision of the law, the preliminary objection would be alive and within the jurisdiction of this court.
7.In the case of Gathoni –vs- Kenya Co-operative Cremaries Ltd (1982) KLR 104 Potter, JA stated the rationale of the Law of Limitation as follows: -
8.The question before this Court is to determine when the cause of action accrued. In B Mathayo Obonyo v South Nyanza Sugar Company Ltd, Majanja J. was guided by the Black’s Law Dictionary (10th Edition) and stated as follows:
9.In line with the sentiments of the learned judge, the cause of action in this instance would have accrued at the time when the Defendant failed to complete his obligations under the Sale Agreement on or about 20th January 2016.This would mean that the by initiating the suit in August of the same year, the Plaintiff was well within time.
10.For this reason, I find the preliminary objection is unmerited and the same is hereby dismissed with costs to the Plaintiff.
11.It is so ordered.